R v Youkhana - [2004] NSWCCA 87

CITATION: R v Youkhana [2004] NSWCCA 87

HEARING DATE(S): 24 March 2004

JUDGMENT DATE:
6 April 2004

JUDGMENT OF: Studdert J at 1; James J at 35; Dunford J at 36

DECISION: Appeal against conviction on count 4 upheld; conviction and sentence relating thereto quashed; new trial ordered in relation to count 4.

LEGISLATION CITED: Criminal Appeal Act, s 6

CASES CITED: R v Tangye (1997) 92 A Crim R 545

PARTIES :
Regina v John Youkhana

FILE NUMBER(S): CCA 60455/03

COUNSEL: E. Wilkins (Crown)
R. Hulme SC (Appellant)

SOLICITORS: S. Kavanagh (Crown)
S. O'Connor (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0706

LOWER COURT
JUDICIAL OFFICER : Sorby DCJ

60455/03

STUDDERT J
JAMES J
DUNFORD J
Tuesday 6 April 2004

REGINA v JOHN YOUKHANA

Judgment

1 STUDDERT J: The appellant, John Youkhana, stood trial in the District Court before his Honour Judge Sorby and jury in December 2002 following the presentation of an indictment containing seven counts:

° Count 1 charged him with affray;

° Count 2 charged him with maliciously inflicting grievous bodily harm;

° Count 3 was an alternative count to Count 2, charging him with assault;

° Count 4 charged him with maliciously inflicting grievous bodily harm upon a police officer acting in the execution of his duty;

° Count 5 was an alternative count to Count 4, charging him with an assault upon that police officer;

° Count 6 charged him with resisting a police officer in the execution of his duty;

2 On 12 December 2002 the jury found the appellant guilty on counts 1, 2, 4, 6 and 7. Verdicts were not taken in respect of counts, 3 and 5, since they were alternative counts to counts 2 and 4.

3 The appellant appeals in respect of his conviction in relation to count 4 only.

4 Before considering the grounds of appeal, I propose to outline the Crown case.

5 The offences in respect of which the appellant was convicted occurred at Central railway station on 19 September 2001. The appellant was one of five men who were standing in the vestibule area of a carriage of a Liverpool-bound train at about 5.20 pm. The train was stationary at the platform. A passenger named Donald Murphy boarded the train but the men blocked access to the compartments. According to Mr Murphy, it was the appellant who said: “Don’t get on the train, fuck off.” He described the men as “seeming to be pretty agitated and…like they were just looking for a fight or something.” Mr Murphy, having entered the train, walked to the opposite side of the vestibule and another of the group asked him: “Do you want a punch in the head?” Mr Murphy then left the train and sought the assistance of State Rail employees. The facts thus far summarised relate to the affray count.

6 Having left the train, Mr Murphy spoke to a guard and there were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Youkhana

Details

AGLC: R v Youkhana [2004] NSWCCA 87
Case: [2004] NSWCCA 87
Decision Date: 6 April 2004

CaseChat Overview and Summary

The case of R v Youkhana involved an appeal by John Youkhana against his conviction in the District Court on count 4 of an indictment, which charged him with maliciously inflicting grievous bodily harm upon a police officer acting in the execution of his duty. The lower court found Youkhana guilty on counts 1, 2, 4, 6 and 7, and the appeal specifically challenged the conviction on count 4. The primary legal issues before the court were whether the trial judge erred in holding there was a case to go to the jury in respect of count 4, and whether the verdict of guilty in respect of count 4 was unreasonable and could not be supported having regard to the evidence.

The Court of Criminal Appeal found that the trial judge did not err in ruling that there was a case to go to the jury on count 4, as it was open to the jury to find that the assault on the police officer was part of a joint criminal enterprise to free Youkhana from arrest. However, the Court held that the verdict of guilty on count 4 was unreasonable and could not be supported by the evidence. The jury was instructed to consider the assault within the context of an extended joint criminal enterprise related to the affray in the train carriage, and the Court found that the jury could not reasonably have concluded that the punch first sustained by the police officer did not cause his injury, or that the assault was within Youkhana's contemplation as a possible incident of the affray.

Accordingly, the appeal against the conviction on count 4 was upheld, and the conviction and sentence relating thereto were quashed. The Court ordered a new trial in relation to count 4. Both James J and Dunford J concurred with Studdert J's decision.

Orders